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Include a Charity Training Day

Issues for charities in bequests and estates: a lawyer’s perspective

Jack Conway

Senior Associate, Aitken Partners

Accredited Specialist—Wills & Estates (Vic.)

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Why are wills important?

  • Biggest transaction a person will ever make
  • Importance of certainty
  • Comfort for families
  • Who gets what?

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Thoughts and statistics

$3.5 trillion over 20 years

Australians with wills

Total wealth transferred to charity

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Triggers to make a will

Health

Travel

Death in the family

Life events

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How does the public make a will?

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Problems with homemade wills

  • Informal wills
  • Is the entity described correctly?
  • Is there a condition or purpose that is impractical?
  • Does it make sense?

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Types of gift

Lump sum (pecuniary gift)

Specific gift

Residual gift

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Who should be an executor?

  • Is a family member appropriate?
  • Are there any family?
  • Can the charity act?
  • What about a trustee company?
  • What about a professional?

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Executor’s remuneration

  • Clauses in a will
  • Applying to Court
  • Professional executors
  • Trustee companies

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Rights of beneficiaries

  • Getting a copy of the will?
  • Compel the will to be brought to Court
  • Seek account from the Court
  • Apply for construction of the will
  • Seek compensation from an executor – breaches of trust or duty

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Cy pres

  • ‘So close’
  • Purpose cannot be carried out
  • Must be general charitable intent
  • Court can sanction scheme

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Litigation

  • Testator’s family maintenance
  • Capacity
  • Undue influence
  • Fraud

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Thank you!

Questions?